Hossain v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Gageler,Keane JJ.,Nettle J.,Edelman J.
• Judgment Date: 15 August 2018
• Neutral Citation: [2018] HCA 34
• Docket Number: S1/2018
• Court: High Court
• Date: 15 August 2018

[2018] HCA 34

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Keane, Nettle AND Edelman JJ

S1/2018

Sorwar Hossain

Appellant

and

Minister for Immigration and Border Protection & Anor

Respondents

Representation

G O'L Reynolds SC with B M Zipser and D P Hume for the appellant (instructed by Mooney & Kennedy Solicitors)

C J Horan QC with T Reilly for the first respondent (instructed by Sparke Helmore Lawyers)

Submitting appearance for the second respondent

Migration Act 1958 (Cth), s 65.

Migration Regulations 1994 (Cth), Sched 2, cll 820.211, 820.223, Sched 4, public interest criterion 4004.

Migration — Partner visa — Criteria prescribed for grant of visa — Where Minister for Immigration and Border Protection must refuse to grant visa if not satisfied that criteria prescribed for grant of visa met — Where delegate of Minister refused to grant visa — Review of decision by Administrative Appeals Tribunal — Where Tribunal not satisfied that visa application made within 28 days or that there were compelling reasons for not applying that criterion — Where Tribunal also not satisfied that visa applicant did not have outstanding debts to the Commonwealth or that appropriate arrangements had been made for payment of debts — Where Tribunal made error of law by assessing whether compelling reasons existed as at time of visa application instead of as at time of Tribunal's decision — Whether error of law in relation to one criterion was jurisdictional error where another criterion was not met.

Words and phrases — “compelling reasons”, “discretion to refuse relief”, “error of law”, “error of law on the face of the record”, “fundamental error”, “independent basis”, “jurisdictional error”, “materiality”, “non-jurisdictional error”, “reasonably and on a correct understanding and application of the applicable law”, “residual discretion”, “satisfied”, “void”, “voidable”.

1 Kiefel CJ, Gageler AND Keane JJ. The Federal Circuit Court 1, exercising “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution” conferred on it under s 77(i) of the Constitution by s 476(1) of the Migration Act 1958 (Cth), made an order in the nature of certiorari, setting aside a decision of the Administrative Appeals Tribunal which had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant a visa, and an order in the nature of mandamus, remitting the subject matter of that decision to the Tribunal for redetermination. The Federal Circuit Court made those orders consequent on finding a jurisdictional error constituted by an error of law in the reasoning of the Tribunal which led to the decision.

2 The Federal Circuit Court was correct to find an error of law in the reasoning of the Tribunal which led to the decision; indeed, the error of law was conceded. The Federal Circuit Court was incorrect to characterise that error as a jurisdictional error. That is because, on the facts found by the Tribunal, the Tribunal had a duty to affirm the decision of the delegate in any event. The Tribunal had not exceeded its jurisdiction by making the decision which it made.

3 The Full Court of the Federal Court 2, by majority, allowed an appeal and set aside the orders of the Federal Circuit Court. The majority was correct to do so, although not exactly for the reasons which it gave. This appeal from the judgment of the Full Court must accordingly be dismissed.

The Tribunal

4 Mr Hossain, a citizen of Bangladesh, made a valid application for a partner visa. The application was considered by a delegate of the Minister. Not being satisfied that criteria prescribed by the Migration Regulations 1994 (Cth) for the grant of the visa had been met, the delegate refused to grant the visa.

5 Mr Hossain then applied to the Tribunal for merits review of the delegate's decision. The Tribunal affirmed the decision of the delegate because it was not itself satisfied that two prescribed criteria had been met. One was a criterion which related to the timing of the making of the application. Relevantly to the circumstances of Mr Hossain, it required that the application be validly made within 28 days of the applicant ceasing to hold a previous visa “unless the Minister is satisfied that there are compelling reasons for not applying [that

criterion]” 3. The other was a public interest criterion expressed in terms that the visa applicant “does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment” 4.

6 The Tribunal was not satisfied on the evidence before it that either criterion was met. On that basis, the Tribunal affirmed the decision of the delegate.

7 In relation to the criterion relating to the timing of the making of the application, the Tribunal found that Mr Hossain had not applied within 28 days of ceasing to hold a previous visa and was satisfied that there were no compelling reasons as at the time of the application for not applying the criterion.

8 In relation to the public interest criterion, the Tribunal noted in its reasons for decision that Mr Hossain had admitted in evidence before the Tribunal that he had an outstanding debt to the Commonwealth which he had made no arrangements to pay, but which he said he intended to pay. The Tribunal also noted that at the time of its decision, more than a week after he had appeared before it, Mr Hossain had provided no evidence that he had taken steps to pay the debt in the interim. The Tribunal recorded that it was not convinced that his stated intention to pay the debt was genuine and that it was not satisfied that appropriate arrangements had been made for payment.

The Federal Circuit Court

9 Mr Hossain applied to the Federal Circuit Court for judicial review of the Tribunal's decision. By the time that application came to be heard by the Federal Circuit Court, Mr Hossain had fully paid his debt to the Commonwealth.

10 The Minister conceded before the Federal Circuit Court that the Tribunal had erred in law in attempting to apply the criterion which related to the timing of the making of the application. The conceded error lay in the Tribunal having addressed the question of whether there were compelling reasons for not applying the criterion as at the time of the application for the visa rather than as

at the time of its own decision 5. The Minister argued that the conceded error was not a jurisdictional error, because the Tribunal's failure to be satisfied that the public interest criterion was met at the time of its decision provided an independent basis on which the Tribunal was bound to affirm the delegate's decision.

11 The Federal Circuit Court rejected the Minister's argument, refusing to engage in what it described as an “unbundling” of the Tribunal's reasons for decision into “impeachable” and “unimpeachable” parts 6. Holding that the Tribunal's error was a jurisdictional error, the Federal Circuit Court found no discretionary reason to withhold the relief which Mr Hossain sought under s 476 of the Migration Act7.

The Full Court of the Federal Court

12 On appeal to the Federal Court, the Minister repeated substantially the same argument which he had put to the Federal Circuit Court.

13 The majority in the Full Court of the Federal Court comprised Flick and Farrell JJ. They rejected the Minister's argument in form. They chose to characterise the Tribunal's error as “jurisdictional”. They nevertheless accepted the Minister's argument in substance, holding that the Tribunal's error had not stripped the Tribunal of authority to make the decision to affirm the delegate's decision 8.

14 The dissentient, Mortimer J, also thought that the Tribunal's error, being an error in the construction and application of a visa criterion, warranted the label of “jurisdictional”. Noting that “it is difficult to discern a consistent approach throughout the authorities as to the appropriate outcome where there is more than one basis for a Tribunal's decision on review under the Migration Act”, Mortimer J thought that the correct approach was “to accept an error of this kind is jurisdictional and then to ask whether there is utility in the grant of relief to an

applicant, because of a second basis for the decision on review” 9. Approaching the matter as one of discretion, she concluded that the orders made by the Federal Circuit Court were not futile because the fact that the debt to the Commonwealth had been repaid meant that, on reconsideration by the Tribunal, Mr Hossain's meeting of the public interest criterion would no longer be in issue 10.

15 Mortimer J indicated that, if she were wrong about the correct approach, she would have inclined to the alternative view that the two visa criteria in issue before the Tribunal were not entirely independent of each other. The connection between them which she postulated was that if the Tribunal had been satisfied that there were compelling reasons for not applying the criterion relating to the timing of the making of the application, the Tribunal, properly instructed, might have been persuaded to delay making its decision until such time as Mr Hossain was able to satisfy it that he had either paid his debt to the Commonwealth (as he had told the Tribunal he intended to do and as in fact he later did) or entered into an arrangement with the Commonwealth for payment to occur 11.

This appeal

16 On appeal by special leave to this Court, Mr Hossain relies on arguments which develop the themes reflected in the reasoning of Mortimer J. The Minister repeats the substance of the argument which he put to the Federal Circuit Court and to the Full Court of the Federal Court.

Jurisdiction and jurisdictional error

17 The term “jurisdiction”, Frankfurter J...